Florida takes aim at vaccine passport ruling
Gov. Ron DeSantis’ administration has asked a federal appeals court to toss out a preliminary injunction that allowed Norwegian Cruise Line Holdings to require passengers to show documentation that they have been vaccinated against COVID-19.
Attorneys for the administration filed a 69-page brief Monday at the 11th U.S. Circuit Court of Appeals backing a new state law that seeks to bar businesses from requiring such documentation — what has become known as vaccine passports.
Norwegian filed a federal lawsuit challenging the law, and U.S. District Judge Kathleen Williams issued a preliminary injunction in August, finding that the measure violates the First Amendment and the dormant Commerce Clause of the U.S. Constitution. But attorneys for the DeSantis administration wrote in Monday’s brief that the law is an “economic regulation that does not implicate” the First Amendment.
“The law simply prohibits businesses from conditioning service on customers providing documentation certifying COVID-19 vaccination,” the brief said. “Norwegian may still request that documentation from its customers, its customers may voluntarily provide it, and both parties are free to discuss the topic. What Norwegian may not do is deny service to customers who fail to provide that documentation. Neither does Florida’s law prevent the free flow of information or prevent Norwegian and its customers from communicating. Again, Norwegian can discuss COVID-19 vaccination status with its customers to whatever extent it wishes and request documentation of vaccination status. Norwegian simply cannot deny service to customers if they do not provide that documentation.”
But in her August ruling, Williams wrote that the law is a “content-based restriction” on speech, as it targets documentation but allows businesses to request other information from customers about issues such as vaccinations.
“While companies cannot require customers to verify their vaccination status with ‘documentation,’ the statute does not prohibit businesses from verifying vaccination status in other ways (e.g., orally),” Williams wrote. “Accordingly, under (the law), businesses could still ‘discriminate’ against unvaccinated individuals by adopting a vaccination requirement, which they could enforce by requiring oral verification of vaccination status before entry or by deterring unvaccinated patrons from entering by putting up signs that read ‘vaccinated customers only’ and ‘unvaccinated patrons are not allowed.’”
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